Citation Nr: 0217507
Decision Date: 12/04/02 Archive Date: 12/12/02
DOCKET NO. 02-02 418 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Louisville, Kentucky
THE ISSUES
1. Entitlement to an effective date prior to September 13,
2000, for the grant of service connection for bilateral
hearing loss.
2. Entitlement to an effective date prior to November 21,
2000, for the grant of service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a November 2001 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Louisville, Kentucky, which denied the benefits sought on
appeal. The veteran, who had active service from February
1946 to September 1952, appealed that decision to the BVA,
and the case was referred to the Board for appellate review.
Statements and testimony from the veteran are construed as a
motion for clear and unmistakable error in the Board's
April 29, 1965, decision. This matter will be addressed in
a separate decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained, and
the duties to notify and assist have been satisfied.
2. An April 1965 BVA decision denied service connection for
defective hearing.
3. The RO received the veteran's request to reopen a claim
for service connection for hearing loss on September 13,
2000.
4. The RO received a claim from the veteran for service
connection for tinnitus on November 21, 2000.
5. A rating decision dated in November 2001 granted service
connection for bilateral hearing loss, effective
September 13, 2000, and for tinnitus, effective November 21,
2000.
CONCLUSIONS OF LAW
1. The requirements for an effective date prior to
September 13, 2000, for the grant of service connection for
hearing loss have not been met. 38 U.S.C.A. §§ 5103, 5103A,
5107, 5110 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102,
3.159, 3.400 (2002).
2. The requirements for an effective date prior to
November 21, 2000, for the grant of service connection for
tinnitus have not been met. 38 U.S.C.A. §§ 5103, 5103A,
5107, 5110 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102,
3.159, 3.400 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, in November 2000, the Veterans
Claims Assistance Act of 2000 (VCAA) became law. The VCAA
applies to all pending claims for VA benefits and provides,
among other things, that the VA shall make reasonable
efforts to notify a claimant of the evidence necessary to
substantiate a claim for benefits under laws administered by
the VA. The VCAA also requires the VA to assist a claimant
in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A
(West 1991 & Supp. 2002); 38 C.F.R. § 3.159 (2002).
First, the VA has a duty under the VCAA to notify a claimant
and any representative of information and evidence needed to
substantiate and complete a claim. Collectively, the
November 2001 rating decision, the statement of the case and
the supplemental statement of the case issued in connection
with this appeal have notified the veteran of the evidence
considered, the pertinent laws and regulations and the
reasons his claims were denied. In addition, letters to the
veteran dated in May and June 2001 specifically informed the
veteran of the provisions of the VCAA, including the
division of responsibilities between the veteran and the VA
in obtaining evidence. Under the circumstances, the Board
finds that the notification requirements of the VCAA have
been satisfied. Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Second, the VA has a duty to assist a claimant in obtaining
evidence necessary to substantiate a claim. In this regard,
the Board notes that the veteran's service medical records
are associated with the claims file, as are private and VA
records, including the report of a September 2001 VA
examination. The veteran and his representative have not
made the Board aware of any additional evidence that needs
to be obtained prior to appellate review, and indeed, there
has been no assertion that any relevant evidence is missing.
Therefore, the Board finds that all relevant evidence
necessary for an equitable disposition of the veteran's
appeal has been obtained. Simply put, the record is
complete. Accordingly, the case is ready for appellate
review.
Background and Evidence
The veteran's service medical records contain no evidence of
complaints, treatment or diagnosis of hearing loss or
tinnitus. A report of a physical examination performed in
September 1952 in connection with the veteran's separation
from service shows hearing was 15/15, bilaterally, for
whispered and spoken voices.
A VA Form 8-526 (Veteran's Application for Compensation or
Pension) received in December 1952 contains no claim for
service connection for hearing loss or tinnitus.
A report of a VA examination performed in September 1960
contains no complaints of hearing loss or tinnitus. The
veteran's hearing was described as 15 feet for whispered
voice, bilaterally, and 20 feet for conversational voice,
bilaterally.
In August 1964, the veteran's representative submitted a
statement from Will R. Pryor, M.D., pertaining to the
veteran's hearing loss.
In a VA Form 21-4138 (Statement in Support of Claim), dated
in August 1964, the veteran relates that he did not receive
treatment for an ear condition while in service and notes
that the nerve damage he suffered during service was not
disclosed by the method of ear examinations used at the time
of his discharge in September 1952. The veteran noted that
his recent rejection by the Ford Motor Company because of
nerve damage was disclosed by an audiology test. The
veteran went on to explain that two physicians had informed
him that his damage was due to frequent loud noises and that
since his duties in the Army were concerned with weapons
used in the Infantry that this explained his exposure to
loud noises. The veteran stated that he had not been
exposed to loud noises since his discharge.
A rating decision dated in August 1964 denied service
connection for defective hearing. The veteran appealed that
decision to the BVA, and in a decision dated April 29, 1965,
the Board denied service connection for defective hearing on
the basis that the veteran's hearing was normal upon entry
and separation from service, that no treatment was shown
during service and that impaired hearing was first noted in
June 1964.
A VA Form 21-4138 received on September 13, 2000, the
veteran indicated that he would like to reopen a claim for
service connection for hearing loss.
In a statement received on November 21, 2000, the veteran
made reference to ringing in his ears.
A report of a private audiological examination dated in May
2001 concluded with remarks that the veteran had bilateral,
symmetrical, moderate to severe, high frequency
sensorineural hearing loss that was consistent with noise-
induced hearing loss.
A report of a VA examination performed in September 2001
shows the examiner was of the opinion that it was as likely
as not that the etiology of the veteran's high frequency
hearing loss and his reported continuous bilateral tinnitus
since 1950 was from exposure to noise while he was in the
military.
A rating decision dated in November 2001 granted service
connection for bilateral hearing loss with an evaluation of
10 percent effective September 13, 2000, and granted service
connection for tinnitus with an evaluation of 10 percent,
effective November 21, 2000.
The veteran presented testimony at a videoconference hearing
before the Board in September 2002. At that hearing, the
veteran offered testimony as to why he believed that service
connection should have been granted in 1964 when he first
filed a claim for service connection for hearing loss. The
veteran essentially related that the record was unchanged
since it was at the time of 1964. The veteran asserts that
testing performed upon his separation from service was
insufficient to identify a high frequency hearing loss and
that he had noted a hearing loss and tinnitus since service.
Laws and Regulations
In general, the effective date of an award based on an
original claim or a claim reopened after final adjudication
of compensation shall be fixed in accordance with the facts
found, but shall not be earlier than the date of the receipt
of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400. Furthermore, the effective date for the grant of
service connection will be the day following separation from
service if a claim is received within one year after the
date of separation from service, otherwise, the effective
date is the date of receipt of the claim. 38 U.S.C.A.
§ 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Lastly, the
effective date of an award of service connection after a
final disallowance of a claim or based on a reopened claim
is the date of receipt of the new claim or the date
entitlement arose, whichever is later. 38 C.F.R.
§ 3.400(q)(1)(ii), (r).
Analysis
The basic facts in this case are not in dispute. The
veteran does not dispute that he first filed a claim for
service connection for hearing loss in 1964 and that this
claim was considered and denied by the Board in April 1965.
The veteran also does not dispute that he requested that his
claim for service connection for hearing loss be reopened on
September 13, 2000, and apparently does not dispute that he
filed an initial claim for service connection for tinnitus
on November 21, 2000. Both of the claims filed in 2000 were
granted by the RO with the effective date assigned by the RO
consistent with the date of claims filed in 2000.
Since the veteran first filed a claim for service connection
for tinnitus on November 21, 2000, more than one year
following separation from service, the only possible
effective date based on the veteran's claim and VA laws and
regulations would be the date of his claim filed on
November 21, 2000. While the Board acknowledges the
veteran's contentions and testimony that he had experienced
tinnitus since service, the record contains no claim or
statement from the veteran which can be construed as a claim
for service connection for tinnitus prior to November 21,
2000. Accordingly, the Board finds that the effective date
of November 21, 2000, for service connection for tinnitus is
correct.
As for the effective date for hearing loss, the veteran's
first claim for service connection for hearing loss was
received more than one year following the separation from
service, and that claim was denied by the Board in April
1965. The veteran has not requested reconsideration of that
decision pursuant to 38 U.S.C.A. § 7103, and accordingly,
the Board's April 1965 decision is final. The record
contains no additional claim for service connection for
hearing loss until the veteran filed a statement to reopen
his claim in September 2000. Under VA laws and regulations,
the effective date of an award based on a reopened claim
after a final decision is the date of claim or the date
entitlement arose, whichever is later. As such, the Board
finds that the RO correctly chose September 13, 2000, as the
effective date for the grant of service connection for
hearing loss.
The Board acknowledges the veteran's contentions concerning
the state of the record at the time of the Board's 1965
decision and at the time the RO granted service connection
for hearing loss in November 2001. In this regard, the
Board would note that in Dr. Pryor's August 1964 statement
he noted a history of noise exposure during service, but
concluded only that this loss could well be caused by
exposure to the continued loud noise damaging the eighth
nerve, whereas the examiner who performed the September 2001
examination was more definitive in the etiology of the
veteran's hearing loss, concluding that it was as likely as
not that the etiology was exposure to noise during service.
While the Board is not expressing any opinion as to any
claim the veteran may have of clear and unmistakable error
in the Board's April 1965 decision, the Board would simply
note that the medical evidence for consideration in 1965 and
more recently at the time of the 2001 decision was not
identical.
ORDER
An effective date prior to September 13, 2000, for the grant
of service connection for hearing loss is denied.
An effective date prior to November 21, 2000, for the grant
of service connection for tinnitus is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.